Coming Up Aces

When the Double G speaks on matters legal, I tend to listen. So his glowing approval of Obama's choice of Dawn Johnsen to head the DoJ's Office of Legal Counsel pretty much means Barry has slammed one out of the park and put the Good Guys firmly on the scoreboard.

The Office of Legal Counsel, inside the Justice Department, is probably the most consequential federal government office that remains relatively obscure. The legal opinions which it issues become, more or less automatically, the official legal position of the Executive Branch. It was from that office that John Yoo, Jay Bybee and others did so much damage, issuing now-infamous memoranda that established the regime of lawlessness that has dominated our political institutions over the last eight years. Other than Attorney General-designate Eric Holder and Obama himself, there is probably no official who will have a more significant role in determining the extent to which the Obama administration really does reverse the lawlessness and legal radicalism of the Bush years.

Today, as The Boston Globe just reported, Barack Obama announced several new appointments to key DOJ posts, including Dawn Johnsen to head the OLC. Johnsen is a Professor of Law at Indiana University, a former OLC official in the Clinton administration (as well as a former ACLU counsel), and a graduate of Yale Law School. She's become a true expert on executive power and, specifically, the role and obligation of the OLC in restricting presidential decisions to their lawful scope.

It's that John Yoo memo that set the tone of the Bush administration's legal bankruptcy, literally following the famous Nixon quote "If the President does it, it's not illegal." Dawn Johnsen is a clarion signal that Obama will reverse course on the growing monstrosity that is Executive Privilege.

Perhaps most importantly -- and most impressively -- of all, this is what she wrote in Slate on March 18, regarding what the next administration must do about Bush's serial lawbreaking:

I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. . . .

The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. . . .

But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed. . . .

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.

I first read these posts of Johnsen's a few weeks ago when a reporter asked me about my reaction to the possibility that she might be appointed to head the OLC. Beyond these articles, I don't know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor, stating the OLC's "core job description" is to "say 'no' to the President," all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come" -- and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters -- is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it's hard not to consider this encouraging.

Not only that, but it's a very good sign that Obama may indeed be considering going directly after Bush's lawbreakers. Somewhere in his undisclosed location, Dick Cheney may actually be scared for the first time in eight years, and all I have to say is about damn time.

More people like Dawn Johnsen, please.